TITLE: Lopez v.
Heesen
36d P.2d 448 | DATE: Aug. 22, 1961 | PONENTE: J. Chavez
TOPIC: Introduction and Admissibility
DOCTRINE: Opinion evidence is admissible on the basis that it will aid
the jury to understand the problem and lead them to the truth on the
ultimate facts, and opinions may be disregarded by the jury in whole or
in part. It is left to the jury to decide the issue.
FACTS:
 Sears sold to appellee, Heesen, a J.C Higgins Model 51, 20.06
rifle
o Heesen was an Air Force officer who purchased the said
rifle from Sears
o The rifle has a bolt action known as Mauser type action,
with which Heesen was familiar
o Although experience with hunting, he was not
experienced with handling a Higgins Model 51 and had
never used such rifle
o Safety mechanism: Class 1 safety: interrupts the firing
pin directly
o Safety lever is a two-position safety with the action
locked when the rifle is in a raised position; to release
safety, the safety lever is pushed to the left and down to
a horizontal position and the gun is then ready to fire
 Heesen proceeded with his hunting trip after he purchased
the rifle at Ute Park, Eagle Next, Colfax County
o Began hunting at night to no success
o The next morning he placed a live cartridge in the
chamber and placed the gun on safety position
o traveled a good deal during the hours before the
shooting and on one or two occasions he discovered the
gun off safety position
o Heesen was carrying the gun all throughout the trip,
changing the carrying position from time to time
 The gun moved from safe to fire position at
least 2 during the hours before the shooting;
however, Heesen was not aware of this
occurrence
o Shortly before the shooting, Heesen had been sitting on
a knoll for about twenty minutes checking the wind and
watching for deer.
o While sitting on the knoll he checked or observed the
safety lever on the rifle several times and it was on
safety position.
 Jesse Lopez, the wounded, was sitting next to a tree about
50 yards away from the point where Heesen’s gun
discharged
o he was also on a hunting trip (simultaneous with that of
Heesen’s), in the company of 2 hunting companions
o Appellant was sitting on ground higher than Heesen at
the time the gun discharged and subsequent
investigation showed that the bullet had gone uphill, hit
a dead tree and ricocheted several degrees to the left,
and had thereafter struck some seedlings before hitting
appellant in the chest.
 The bullet traveled approximately fifty yards
altogether
 Heesen’s rifle discharged
o As appellee, Heesen, proceeded down the draw after
leaving the knoll, he heard a "rustle" and saw a deer go
between some trees to the left of his line of travel about
50 to 100 yards away.
o The deer, when observed, was in a direction about 80
or 90 degrees to the left of where appellant was sitting
and Heesen did not observe appellant or his
companions before the shooting.
o At about this time Heesen removed the rifle from the
sling on his shoulder and held it by his right hand at or
near the balance position of the weapon.
o He came across a dead log on his path
o Because Heesen wanted to see the deer better, he
stepped across the log however his foot got caught on a
little limb sticking out and caused him to stumble
o His left foot went down hard on the ground and his
right foot slipped on the grass
 o This brought the gun down causing its firing; he
observed that the gun was on a fire position
 Jesse Lopez instituted a suit against Heesen for unlawfully
assaulting and shooting appellant with a shotgun
o Sears, Roebuck and Company was joined as a party-
defendant
o Thereafter, 2 amended complaints were filed
 The 3rd amended complaint alleged that Sears
was engaged in the design and manufacture of
hunting firearms, including the Higgin Model
51, and was also engaged in the selling of
firearms in Albuquerque
 Also alleged that the Higgins Model 51 was
negligently designed or manufacture by Sears
in that the safety mechanism moved readily
and in a dangerous manner from a safe to a fire
position
 Alleged that this fact was known to Sears and
yet still sold the model to Heesen with
knowledge that it would be used for hunting
purposes and that it negligently failed to warn
Heesen of the dangerous and defective
condition of the rifle
 Jury found the issues for both Heesen and Sears
 Lopez contends the ruling in favor of Sears
o trial court committed error in permitting testimony as
to the general reputation of other firearms companies
who use the same modified leaf safety device as the
Higgins Model 51
 That the testimony of Paul La Violette, Jr., an
expert in gun design, that several companies
had excellent reputation in the small arms field
is wholly immaterial and irrelevant in this case
o contends that the trial court committed error in
permitting evidence to be introduced as to the
poundage pressure required to move the safety levers
of various rifles from "safe" to "fire" position.
o trial court erred in permitting the witnesses, La
Violette, Thomas Robinson and Edwards Brown, to give
opinion evidence that the safety mechanism on the
Higgins Model 51 rifle was negligently or defectively
designed.
 Objection was made to this testimony on the
ground that this was an opinion upon a subject
which is within the province of the jury to
determine and that the question asked calls for
an opinion as to a question of law and fact
ISSUE/S: WoN the trial court correctly admitted the testimonies of
expert witnesses - YES
HELD: The trial court did not abuse its discretion in admitting
expert testimony/opinion evidence
 The conduct of others is proper evidence for a jury to
consider in determining whether the tendency of the thing
is dangerous, defective, or the reverse
 Rule, § 21-1-1(43) (a), which is the same as the Federal Rule,
the rule which favors the reception of the evidence governs, the
basis being that any evidence which throws light on the
question in issue should be admitted, leaving it to the trial court
to hold the hearing within reasonable bounds
o Witness for Lopez: Frank Doyle
 expressed the opinion that the safety device,
without the telescopic sight, is not a safe piece,
in that the projection is too long and it is too
prone to be knocked from "safe" to "fire"
position
 testimony of certain tests made with the
Higgins Model 51 and witness, Ira Kessler,
expressed the opinion that the Higgins Model
51 was unsafe without the telescopic sight.
 Another witness, Robert Allen, testified as to
the manner in which the safety lever of the
Higgins Model 51 moved from "safe" to "fire"
position without his knowledge.
o Witness for Sears: Paul La Violette, Jr.
  gun designer employed by High Standard  The evidence discloses that the pound pressure required to
Manufacturing Company who manufacture the move the safety lever on other similar devices was sometimes a
Higgins Model 51 for Sears. little less and sometimes more than the Higgins Model 51
 qualified as an expert gun designer with many  Opinion evidence on an ultimate issue of fact does not attempt
years' experience with other rifle or have the power to usurp the functions of the jury, and this
manufacturers and in factories designing and evidence could not usurp the jury's function because the jury
building weapons of the small arms design may still reject these opinions and accept some other view.
 testified that the safety device on the Higgins  Opinion evidence offered by both parties in this case was not
Model 51 is supplied to High Standard binding upon the jury and they were so instructed
Manufacturing Company by Fabrique o The testimony of these witnesses, all experts in their
Nationale of Belgium. field, was upon the ultimate issue of fact of whether the
 He also testified extensively as to the safety device on the Higgins Model 51 was dangerous
advantages of the safety device of the Higgins and defective or unsafe, and was properly the subject of
Model 51 and stated that six different makes of expert testimony.
guns have the same modified leaf safety device
as does the Higgins Model 51 DISPOSITIVE: Finding no error in the record, the judgment of the
 manufacturers of these guns are F.N. Mauser, district court is affirmed. It is so ordered.
Colt, Marlin, Nato and Weatherby
 has never been sued by reason of the design of
the Higgins Model 51 rifle; that the Higgins
Model 51 rifle is safe by all commercial
sporting goods standards
 testified, without objection, that the safety
device on the Higgins Model 51 rifle is
excellent for hunting and fulfills the
requirements of a good designer
 testimony as to the reputation of Fabrique Nationale, who
manufacture the safety device on the Higgins Model 51, and the
reputation of Marlin Firearms Company, Weatherby
Corporation, Colt Firearms Company and Jefferson Corporation,
who manufacture rifles which have the same modified leaf
safety device as the Higgins Model 51, was relevant to the issue
of whether the safety device on the Higgins Model 51 was unsafe
or safe;.
 Under the circumstances it was proper for appellee, Sears, to
show that the poundage pressure required to move the safety
lever on a Higgins Model 51 from "safe" to "fire" measured 2 ½
pounds, and also to show the poundage pressure required in
rifles with identical safety devices.